Have you ever attempted to calm down an emotional person? Our natural inclination is to deny the emotional content of what the speaker is saying by using logic and/or facts such as, “There is no reason to get upset”, “Calm down”, “You are over-reacting”, “You have misunderstood”, “Maybe it is because”¦.”; “Don’t be so sensitive”, “Let’s look at the facts”¦”, “If you really think about it”¦.”, et cetera. (Micro-Interventions in Mediation, by Douglas E. Noll at pp. 15-23 (2014))
In reality, what we are doing is making the situation worse. We are, in essence, invalidating and denying the emotional content of the statements and the feelings of the speaker; and the more we invalidate, the more emotional the speaker will become. (Our natural inclination is to become more stubborn or obstinate in the face of adversity or a “NO!”) (Id.)
I learned this “simple” lesson at a recent training session with Douglas E. Noll who explains that the best way to deal with emotional people is by using “Micro-Interventions”. He urges that rather than listening to the words of the speaker, to listen to the emotional content and simply respond to the statement by labeling the emotion. For example,
Speaker: It would stink to have to lose my house, but no way do I want to have to pay for it while she’s living in it with her boyfriend.
Response: You are angry, frustrated, and sad. You feel betrayed and disrespected. You feel grief and abandonment.
Speaker: It would be so hard to settle with all of my debt hanging over me.
Response: You are anxious and fearful. You are confused and uncertain. You feel alone and unsupported. You feel abandoned.
(Micro-Interventions in Mediation, by Douglas E. Noll at p. 23 (2014))
More often than not, the primary emotion being expressed is anger. This may often be followed by frustration, anxiety, fear and disgust, sadness and grief and finally, abandonment. (Id.)
Initially, it will feel quite awkward, if not uncomfortable, to respond by labeling the emotion and sometimes, you will label the emotion incorrectly (Mr. Noll cautions not to use “I” statements but rather always start with “you.’) But, as Mr. Noll, points out, identifying the wrong emotion is quite alright as the speaker will be quick to correct you by saying what she is really feeling. When you respond back with that emotion (and perhaps one or two others), you will know that you have correctly assessed the situation when the speaker responds with an unconscious head nod, or a “yes” , and a slight lowering or bowing of the shoulders indicating relief/release. When this happens, the speaker will suddenly feel as if you have “really” heard what she has been saying and understand her and will calm down. (Id. at 31.)
At this point, you can discuss the issue on a more “rational” or “factual” basis, looking for options and ways to resolve the issue.
According to Mr. Noll, this micro-intervention should take no more than 90 seconds and can be very subtle. But, it will get the speaker to calm down, and become “rational” once again.
Since returning from the training, I have tried it a few times and “¦it works! So, give it a try”¦ you will be surprised at the results!
“¦.. Just something to think about.

The Case For Formally Professionalizing Court-Connected And Litigated-Case Mediation

by Jack R. Goetz, Esq., Ph.D., Jennifer Kalfsbeek, Ph.D.

Introduction

It is not illegal for someone in California to raise a sign or to place an ad claiming to be a mediator, charge fees for mediation, and engage in this largely unregulated process intending to serve the public by helping parties resolve disputes. As the ninth largest global economy, California is a sizeable and an illustrative example of how the mediation field operates within the United States as well as where the field may be moving as the occupation evolves. (1) Young notes, “most mediators in most states . . . can hang up a shingle without meeting any licensing or training requirements or agreeing to be bound by any ethical guidelines. Most mediators are beyond any state-sponsored sanctioning process.”(2) Jarrett writes that the field of mediation is borne out of the counterculture movements of the 1960’s and 1970’s, a rejection of a formalistic, legal system that resolves disagreements in a prescribed manner. (3) Thus, the field continues to have an occupational preference for no regulation, with perhaps a sentiment that if mediator regulation became the norm, mediation would lose its creative spirit.(4) For this reason, the mediation community in the United States is debating the need to formally professionalize mediation.

This article posits that the field of mediation can better serve the public by developing a system of public accountability that would elevate itself to a formal, professional status. What’s more, the proverbial train may have already left the station in disputes that are resolved in a public forum: court-connected and litigated cases. Client expectations and the statutes protecting confidentiality in mediation anticipate professionals, and the mediation practice therein has rapidly evolved towards professionalization. These public-forum litigated case mediators are often regulated under local court or state rules, which also require some mediation training, thus putting them ahead of the rest of the field of mediation with regard to professionalization. However, the final steps that are required by other professions, with the inclusion of a common ethical code and a qualifying exam, are still not standard for mediators. Without establishing some of the fundamental elements that are at the core of professions, including agreement on what constitutes mediator education or training and willingness of the field to keep out other would-be practitioners who do not meet a common standard, mediation has failed to live up to the standard of the other professions and therefore undercuts its value for the community. Ultimately, in the absence of establishing a professional standard, the fundamental judgment and enforcement of what constitutes a “mediator” in public forum litigated cases is deferred to local courts, providing unevenness in application. For example, in Los Angeles, one of the largest counties in the world, budget pressures ultimately led to the demise of the court-connected mediation panel (5) reputably the largest court-connected panel in the United States.

This article attempts to answer the long debated issue about whether mediation is a profession, but leaves plenty for future research. It does not attempt to answer the political question regarding which governmental or non-governmental body should professionalize mediators. It does not attempt to define, other than by demonstrating what has been required to date in mediation and other occupations, what should be the ultimate standard for mediation professionalization. This article will however, look at the sociological view of professions, review the current discussion and treatment of the mediation field, and analyze what it might take to move mediation as a whole, and then court-connected and litigated-case mediation, to profession status. Finally, with special focus on court-connected and litigated-case mediation, this article will conclude by reviewing some of benefits and detriments of converting an occupation to one that is a recognized profession.

Defining Mediation and Court-Connected and Litigated-Case Types

Mediation is a process in which a third party, called a “neutral,” assists disputants in creating their own solution to a conflict.(6) Mediators do not make rulings in matters, but they facilitate problem solving between disputants. While some mediators are also attorneys, many are not. Additionally, mediation is sometimes confused with arbitration; however, arbitration involves a hearing in which the arbitrator is charged with hearing evidence and making a court-like ruling. Mediators utilize the principle of party self-determination, facilitating negotiations between the parties until an agreed upon final settlement is reached. If the mediator is involved in a dispute that has already been filed as a lawsuit, it is referred to as litigated-case mediation; if the mediator receives the mediation assignment under the auspices of a court process or the court has made the mediator’s name available to the parties, it is considered a court-connected case. As noted previously, the mediation community in California and beyond is currently debating the need to formally professionalize the practice of mediation.Behaving “Professionally” versus Being a Recognized Professional

It is common for members of occupations to ask themselves if they should become a formalized “profession.” This occupationally defining question can lead to complex discussions among colleagues. A person behaving in a manner that is respectful and appropriate among occupational peers is often said to be acting professionally. Yet not all occupations are “professions.” Sociologist Craig McEwan notes on mediator professionalism that the “effort to offer professionalism without professionalization suggests multiple meanings of these concepts.”(7) Clearly, the notion of “profession” is widely used yet not commonly understood.

Pavalko’s seminal text notes that defining “profession” is complex because we use the word “profession” in varying ways. Pavalko notes three ways in which “profession” is commonly understood: 1) profession as full-time activity, 2) profession as competence, and 3) the professions.(8) The former two notions refer to common colloquial ways in which people refer to being professional; the latter refers to what it means to be a formally recognized profession, with the rights and restrictions attached to this status. Mediation’s occupational status is linked to the understanding of these distinctions.
One is oftentimes considered “professional,” or engaging in a “profession,” when referring to their “full-time performance of an activity for pay in contrast to engaging in the activity on a part-time basis, as a recreational activity, or without pay.”(9) An athlete or actor who moves from amateur status to working for pay will oftentimes separate themselves from amateurs by referring to themselves as “professional athletes” and “professional actors.”(10) The term “professional,” in these instances, denotes making a living at doing the specified activity. It is also the case that one may wish to convey their specialized skill in an area, or their competence and proficiency in performing a specific set of tasks, by stating that they are a “professional.” This is done to instill confidence in consumers. When someone publicizes that they are a professional carpenter, they are conveying that they are highly skilled at the carpentry trade; “businesses that advertise in this way are attempting to capitalize on popular understandings of the meaning of the term ‘professional’ and turn them to their own commercial advantage.”(11)

These colloquial notions of being “professional” blur the distinction between occupations in which people can earn a living and those that have earned the status that is derived from being part of a formalized profession. Occupations that are formalized “professions” possess characteristics that transcend the fact that one can earn a living in the performance of that occupation. In meeting these additional standards, members of the professions enjoy privileges and the status reserved for occupations that have set qualifications; most importantly, the public they serve can trust that their providers meet a set of standards that are established and overseen by the experts in that field.

The Professions: A Detailed Explanation

In order to be a formally recognized profession, an occupation must possess five sociologically defining characteristics of professions as listed below and described in the sections to follow.(12) (13) (14) (15)

Service to the Public

Code of Ethics

Self-Regulation

Specialized Education

Authority

This article will look at a number of professions that are recognized in the United States and throughout the globe, from physicians to social workers, all of which meet this sociologically defining test. Many occupational groups meet some of the characteristics of professions, and because of the definitional blurring that occurs between the word “professional” or acting “professionally” in contrast to being a member of a profession, it may seem that more occupations are professions than what is the case.Mediation is not a Profession Yet

Detailed in the sections to follow is an explanation of each of the characteristics of the sociological definition for professions and a perspective as to whether mediation meets the characteristic. Table 1 provides a summary of these sections by assessing six established professions, the general field of mediation, and court-connected mediation, against the five criteria for professions. The test reveals that mediation as a whole does not possess all of the characteristics of a profession. However, court-connected mediation is closer to meeting the characteristics and could lead the field into professionalization by setting out to fully meet the final characteristics.

Service to the public: Mediation meets this criterion.

Most professionals become practitioners because they wish to serve society. Others are members of professions that, at least in part, are considered necessary for society’s greater good. Therefore, service to the public is one of the more distinct characteristics of professional practitioners, like nurses and teachers who “have concern for others that go beyond their self-interest of personal comfort.”(16) Most professional work groups, such as physicians, social workers, and psychologists, seek to underscore the “ideal of service” to society as their primary objective.(17)
Service to the public is critical to professions because “the work of the professions is seen as strongly related to the realization of [societal] values.”(18) Values are widely held notions regarding what is good or bad, right or wrong, desirable or undesirable within a society.(19) Values provide us with the principles and the subjective lens from which we evaluate behaviors, events, objects, etc.(20) Common values held in the United States include: justice, liberty, personal safety and security, and the belief that individuals should have access to lifelong health and happiness.

Conversely, some occupational groups have become professions because their formal professional status requires that practitioners engage in their work with an eye towards serving the public. This group of professionals, including public accountants and architects, may not have chosen their occupation because they were compelled to serve the greater good, but they cannot legitimately engage in their fields unless they learn to abide by professional standards that require them to uphold accountability to the public and public safety. Mediation meets the criterion of service to the public because it seeks to facilitate an agreement between consenting parties in disagreement. Mediation supports the values of peace, justice and cooperation. The societal benefits of this value-laden action include reducing litigation costs for private parties and the courts, fostering peaceful communities, and providing service to individuals and entities that otherwise might not have access to these services.Code of ethics: Mediation does not currently meet this criterion.

Codes of ethics are sanctioned norms, or expected behaviors and practices that are articulated by regulating bodies. While some occupations and work groups possess codes of ethics, all professions possess a code of ethics by which all members of the profession are required to obey.(21) Because professions self-regulate, professionals can be held accountable for their actions and required to adherence to their professional code of ethics or risk losing their professional status. While all professions possess a code of ethics, professionals are not necessarily more honorable than non-professionals. However, because professional regulating bodies oversee their members, and sanction their codes, professions can assure the public that they will uphold their codes and, if a professional member breaks a code, their actions are punishable. Possessing a code of ethics also reinforces the “service to the public” value of professions as it serves as a promise of responsibility to society.(22)

Many organizations have developed codes of ethics for mediators (Model Standards of Conduct for Mediators, American Bar Association, 2005; International Mediation Institute, 2013; California Dispute Resolution Council, 2013). Court-connected panels have regulatory systems that often include a code of ethics. Jarrett writes, “a review of a sample of thirty mediator ethics codes from prominent mediator organizations revealed that these codes have almost all reproduced the neutrality and/or impartiality ethics in their definition of mediation.”(23) Despite the proliferation of, and commonalities between, the various codes, there is no universal regulatory system that exists to enforce them for the mediation field except on a fluctuating region-by-region basis. Should mediation self-regulate, those regulations would include the creation and enforcement of a common code of ethics.Self-regulation: court-connected panels are close to meeting this criterion, mediation overall lacks self-regulation.

An occupational group is not a profession without self-regulation, in part because, without regulation, an occupational group cannot fully, and ethically, serve the public. “All professions have licensing, accreditation, and/or regulatory associations that set professional standards and that require members to adhere to a code of ethics as a form of public accountancy.”(24) The argument that mediation should not be regulated is therefore an argument that mediation is not a profession.

Three facets of professions underscore the necessary inclusion of self-regulation as a key characteristic of all professions: autonomy of practice; a qualifying examination; and a professional oversight body. Some occupations include some of these “self-regulation” facets, which can lead people to believe that an occupational group is fully self-regulating. Recognized “professions” however meet all three facets of self-regulation.

First, a distinctive feature of professional work is that professionals typically engage in their work independent of direct supervision. A “professional” is expected to rely on their own judgment in selecting the correct approach to a task or the best technique to use when solving a problem.(25) Professional groups possess “the freedom and power to regulate their own work behavior and working conditions.”(26) With this privilege of autonomy comes the responsibility to self-regulate. To act autonomously, without regulatory oversight, may eventually lead to an abuse of power and possible discrediting of an occupation altogether. Mediators act autonomously when they work with clients. According to McEwan and Freidson, members of professions “control their own work” on a day-to-day working basis as well as on a professional-level scale.(27) (28) Coben chronicles how mediators rely on their best judgment or self-imposed restraint to honor the mediation principle of self-determination as they influence the parties towards settlement.(29) Therefore, mediation meets the characteristic of autonomy. Herein lies the dilemma; mediators act autonomously, yet if they abuse this power, there are no common, formal remedies in place for wronged parties because mediation is not yet fully regulated. In fact, Young chronicles the inability of disputants to successfully sue mediators, even in situations in which allegedly substandard mediation practices are utilized that injure disputants.(30)
Second, all professions possess a qualifying examination that certifies or licenses one as a credentialed practitioner. Common nomenclature on this topic can be confusing. Some occupational groups such as physicians and dentists require their members to be “certified” by passing a certification examination that is overseen by their private, professional association in addition to being licensed by their states to practice.(31) Others, such as nurses and social workers, expect their practitioners to become “licensed” by passing a state-sanctioned examination that qualifies them to practice in a state.(32) (33) Other groups still, including teachers and attorneys, speak of an overarching examination, or credentialing test, which sets the bar for entry to become a practicing member of the profession before they obtain a state license to practice.(34) (35)
A professional may be certified by their professional body and licensed by their state to practice, or they may pass a licensing exam in their state which qualifies them to practice. Therefore, some professions require certification and licensing and others may require just private certification or state licensure. The key distinction between licensing and certification is that “licensing is a mandatory credentialing process established by a state government board. Certification is a voluntary credentialing process by a non-governmental, private professional association. In some cases, professional certification is a requirement for employment, even when a state license is not necessary.”(36) Regardless of the terminology used, or the type of qualification that is applied to the profession (a state-mandated license or not), a qualifying exam of some type – like the bar examination for attorneys, the Medical Board Certification Examination for physicians and dentists, and the Social Work Licensing Exam – is a required facet of self-regulation for all recognized professions. A license, certification, or other qualifying examination serves as a screening device. The objective of these qualifying examinations is to protect the interests of the public by assuring that practitioners hold an agreed-upon level of knowledge and skill, and by filtering out those with substandard levels of knowledge and skill. In its February, 1997 report on teaching professionalization, the National Center for Educational Statistics states: “Professions require credentials. That is, nearly all professions require completion of an officially sanctioned or accredited training program and passage of examinations in order to obtain certification, a credential or a licensure to practice.”(37) However, the field of mediation does not yet require its practitioners to pass a qualifying examination to work as “mediators.”
The third and final facet of self-regulation is the existence of a profession-specific oversight body. To pass a qualifying exam alone only establishes that one can work as a member of the occupation, and it sets a bar-for-entry to practice; however, it does not assure compliance to any occupational codes of practice or a common code of ethics. To be fully self-regulated, an occupation must also include a governing or oversight body that assures adherence to the codes and approved practices of the work group. To regulate is to serve the greater good of the public, because through the process of self-regulation, a common code of ethics is adopted, a formal bar-for-entry is established, and an oversight body is created to monitor the actions of the professionals and to enforce adherence to the professional codes. Typically, the last step in becoming a formalized profession is self-regulation, because regulation requires the establishment of a qualifying exam, adoption of a common code of ethics, adoption of a professional oversight body of peer professionals, and lastly, the establishment of a standard for specialized education – the fourth characteristic of professions. As of the time of this writing, no recognized oversight body that monitors mediators existed. However, courts often maintain a complaint process;(38) therefore, court mediation panels are closer to meeting the definition of a profession under the self-regulation standard than the rest of mediation.Specialized education: mediation as a whole does not meet this criterion; court-connected mediation panels may meet this criterion.

Because members of professions are expected to make autonomous judgments, pass a qualifying examination, and adopt and embody a professional code of ethics, professionals are characterized by the successful attainment of a specialized education. While it is recognized that all occupational work involves the acquisition of skills and knowledge, professional work requires: 1) education that focuses on an abstract and complex knowledge-base, 2) practical training, and 3) continuing education throughout one’s participation as a professional. In order to accomplish the specialized educational goals of a profession, professions today require members to attain a degree in higher education.
Rossides writes that professions are largely defined by the specific academic education required for competence.(39) Specialized training in higher education is one of the key qualifiers for professions.(40) Medical doctors, licensed social workers, and attorneys need graduate level degrees to meet the educational standards of their professions. Accountants and teachers need baccalaureate degrees to qualify. Nurses need a minimum of an associate’s degree. Mediation, because it is largely unregulated in the United States, does not have a common degree or specified education level that is expected in the field, with the possible exception of some court-connected panels. However, the variation in court-connected panels is extreme. Some courts in Minnesota, Oregon, and Maine require no degree at all.(41) (42) (43) Some courts in California and Virginia require a bachelor’s degree.(44) (45) Others still, in Georgia and California, require a law degree.(46) (47) While the wisdom of requiring a law degree will be discussed in this article’s concluding remarks, the court-connected mediators who have earned a higher education degree are closer to meeting the professional norm for higher education attainment for professions.
According to Pavalko, “a profession is an occupation that has developed a complex knowledge-base that serves as the basis of its members’ claim to special expertise.”(48) Pavalko also points out that with professional education, emphasis is placed on “mastering the ability to manipulate ideas, symbols, concepts and principles rather than things and physical objects.”(49) The abstract and complex core knowledge-base that could support mediation as a profession is written into the minimum qualification standards for some state statutes and court-connected panels.
California, for example, has codified this core knowledge in the Dispute Resolution Programs Act.(50) DRPA authorizes public funding for dispute resolution conducted under certain conditions, including that mediators who are conducting a mediation that qualifies for funding meet a minimum of 25 hours of classroom training, including at least 10 hours of lecture and discussion on specific topics germane to mediation theory, and 10 hours of mediation role plays using simulated disputes. The abstract and complex core knowledge specified by that statute includes, communication skills and techniques, building trust, gathering facts, framing issues, empowerment tactics, effective listening and clarification skills, problem identification, identifying options, building consensus, as well as being able to manage the mediation process through settlement. DRPA, however, does not require its mediators to have a higher education degree.

While individual variances in hours devoted to acquiring and maintaining the mediation-specific abstract and complex knowledge base exist, the topics that are at the center of the DRPA statute also resonate with court-connected panel requirements elsewhere. Raines, Hedeen and Barton recently recommended a universal core training requirement of 24 hours for court-connected mediations that included training on the mediation process and fundamental skills, including listening, questioning, framing skills, and ethical practice, with additional hours depending upon the area and setting of the mediation practice.(51) Previously cited, Oregon and Minnesota are other examples of mediator training models largely based on similar topics enumerated by DRPA and the Raines, Hedeen and Barton study.

Professions also typically expect their members to engage in practical training and continuing education. Proof of practice by way of residency training, clinical hours, or practical training hours is required of most professions including physicians, social workers, nurses, and teachers.(52) (53) (54) (55) Lastly, all formal professions explored in this article require continuing education while a practitioner remains a member of their profession.
While this article was not written to be a comprehensive national or state-specific look at what the courts have required in terms of specialized education and training (see Mediation Training International Institute, 2013 for a state by state listing),(56) the trend with those who have looked at the issue of mediating the court-connected or litigated-case is to push the field towards professionalization in this category. Courts often define a core complex knowledge-base, and may require either an undergraduate or law degree in addition to 24-60 hours of mediation-specific training. Additionally, courts often seek mediator commitment to follow court rules; to require some prior mediation experience; to require some engagement in continued mediator training; and attempt to regulate mediators against whom complaints have been filed by litigants.Authority: litigated-case and court-connected mediators are assumed to meet this criterion; mediation in general does not meet the criterion.

Because professionals possess specialized knowledge and skills that are recognized by the public to be of value, professions exist to support the greater good of a society. Combined with their power to self-regulate, professionals possess significant authority in society(57) If an occupational group possesses the first four characteristics of a profession, the final yet critically impacting characteristic – authority – is inherent. Power can be garnered through legitimate and illegitimate means. One can gain power over others because members of the community fear them, or believe that they must obey a person because that person or his/her perceived position has persuaded them to do so. At some point in the pre-professional history of professions, anyone in society could have held themselves out to be a “healer,” “solicitor,” or “teacher.” It is often at this point in the life cycle of a “profession” when occupational groups determine if there is a need to become a profession, for the sake of the greater good of the public. Authority is power that is accepted to be legitimate;(58) professionals possess the power of authority.
Non-professions that are not self-regulated do not possess the same legitimate authority in society. Without the authority that is bestowed upon professionals, an occupational work group cannot be sure that all members of the group are at least required to act in accordance within their professional code of ethics. Therefore, mediators currently possess varying degree Authority: litigated-case and court-connected mediators are assumed to meet this criterion; mediation in general does not meet the criterion of power and do not have the authority that normally characterizes a profession. The public benefits greatly from the legitimate authority provided by the status of professional occupations.

Mediation as an occupation, and court-connected mediation when considered a separate occupation, does not stack-up favorably against recognized professions on the basis of the sociological criteria established. Table 1 outlines six established professions that have been assessed based on the five characteristics of a profession including: physician, social worker, accountant, nurse, teacher, and attorney.(59) (60) (61) (62) (63) (64) The occupational field of mediation overall, and court-connected mediation, are also aligned with the professional characteristics. While the formally recognized professions fully meet the five characteristics of professions, mediation overall meets one of the characteristics, and court-connected mediation fully meets three of the characteristics and partially meets the other two characteristics of professions.

Current Statutory Treatment and Discussion on Mediation as a Profession

Unfamiliarity with sociological standards clouds the discussion of mediation as a profession and contributes to the field’s indecisiveness on the topic. As noted at the beginning of the article, Young wrote that mediation is largely unregulated in the United States, a critical component of being a profession.(65) Yet, Young also chronicles national disagreement about whether mediation is considered a profession. Perhaps it should not be a surprise that there would be disagreement; individuals who hold themselves out to the public as mediators are from disparate backgrounds, including attorneys and psychologists, who already qualify as professionals based upon the five characteristics noted above.
Professions within the United States are created either on a state or national level. Using the California Business and Professions Code as an example, states generally regulate two types of occupations; those for which there is a perceived need to protect the public, and those occupations that are considered professions. Mediation’s lack of inclusion in that Code means that it is not in either category. Thus, amongst the occupations that are not professions but for which there is a perceived need to protect the public, the Code has regulations pertaining to funeral directors, re-possessors, and pest control operators. Levin notes the absence of complaints from consumer advocacy groups and the like in the field of mediation that would otherwise require state regulation.(66) Indeed, based upon mediation missing from this first type of occupation that is regulated under the Code, that may in fact be the case. However, pinning the regulation of an occupation primarily to the lack of public complaint ignores the second category of occupations regulated under that Code and other similar state codes: Professions. Accountants, doctors, attorneys, and social workers are among the professions for whom one can find a regulatory scheme under the Code; mediators are not among these.Evidentiary code confidentiality protections contemplate mediators as part of a profession.
Communications with mediators receive protection under the laws in most states as if they were members of a profession. The National Conference of Commissioners on Uniform State Laws, drafters of the Uniform Mediation Act [hereinafter UMA] that has been adopted in 11 states and is intended to be the main body of law governing mediators, remark on their website that “the UMA’s prime concern is keeping mediation communications confidential.”(67) The NCCUSL (2003, p.7,8) had previously noted that “virtually all state legislatures have recognized the necessity of protecting mediator confidentiality . . . justifications for mediator confidentiality resemble those supporting other communication privileges, such as the attorney-client privilege, the doctor-patient privilege, and various other counseling privileges.”(68)

Using California again as an example, the California Evidence Code sections §1115-1123(69) cloak what transpires in mediation with confidentiality. The CEC indicates that what is said in mediation cannot be used in litigation as evidence, and notes that other materials developed for the mediation are similarly protected. Callahan notes that, “while California’s confidentiality protections have been stated in the form of an evidence exclusion provision, California courts have construed this provision more like a privilege.”(70) However, with those occupations that enjoy confidentiality privileges conferred by the state and used by the drafters of the UMA to support mediation confidentiality, and with the other occupations engaged in rendering services in which confidential privileged communications take place under the CEC, such as an attorney or a doctor, the communication is one with a professional who is regulated, invariably licensed by the state and subject to license forfeiture for misuse of that license. Each professional has taken qualifying examinations in which knowledge of the ethics of the profession are tested. In stark contrast to those professions, mediators operate with the protection of the state statutes, the UMA, and the CEC without being licensed or tested on their knowledge of ethics or of any of the complex knowledge-base that forms the backbone of mediation practice.
Further complicating this issue is the fact that mediators are treated as if they are from a profession, which is the proverbial “elephant in the corner” concept of mediator manipulation. As part of customary practice, mediators manage the agenda and communications between the disputants and use the confidentiality protections so that neither party truly has full disclosure. Coben noted, “mediators themselves routinely and unabashedly engage in manipulation and deception to foster settlements, albeit under the rationale of fostering self-determination.”(71) Coben further states, “surely one must question if a settlement is ever truly self-determined when it is the product of manipulative tactics (no matter how well-intentioned).”(72) The NCCUSL (2003) justify the support for mediation confidentiality legislation nationwide and the UMA’s mediation confidentiality provision in that it promotes candor and encourages early resolution of disputes.(73)However, “blanket protection” for mediator confidentiality is not without its detractors; Deleissegues (2011),(74) citing Factor,(75) writes that “mediation confidentiality protects an incompetent mediator, prevents testimony regarding malpractice, and prevents third parties from learning vital information that might protect them.” While there are good and bad practitioners in every profession, mediation as a field has not yet earned the status of a profession that ordinarily justifies the public trust envisioned by the confidentiality protections.

The debate regarding whether or not mediation should pursue professionalization has been previously chronicled.(76) (77) (78) (79) (80) This article however, has a slightly narrower focus: Given the expectations of mediation practice in litigated-cases, which has evolved differently than the rest of the field of mediation, and the movement nationwide for courts to credential their panels, mediators should be uniting on a state or national level to justify the evidentiary code protections which contemplate mediators as professionals rather than requiring each local court to invest their scarce resources in re-creating standards for mediation panels that are largely undifferentiated. Forces are already pulling litigated-case and court-connected mediation towards professionalization, and continued non-professionalization of the field only serves to deprive those forums of the proper mechanisms for litigants to resolve their cases with all of the alternatives mediation can provide.Litigated-Case Mediation is Evolving towards Professionalization

Mediation, in the context of court-connected panels, has the shortest distance to travel to become professionalized. One could argue that invoking public accountability in the form of self-regulation, a common code of ethics, and agreed upon specialized education, combined with a qualifying examination, could position court-connected mediation with other professions. Since the distinction between qualifications for a mediation practitioner in court-connected panels, in contrast to mediation practitioners in other venues, appears to have evolved gradually, county by county, state by state; there is reason to believe that this distinction is not artificial.
Jarrett sees the growth of mediation directly tied to its corporate clientele who are seeking to reduce litigation costs of increasing conflict driven by economic activity and globalization. In this pre-litigation or litigation context, the formalized ethics and impartiality of mediation serve to legitimize it as an institutionalized conflict resolution mechanism. Therefore, in the court-connected or litigated-case environment, mediation has evolved from its counterculture roots in the mid-20th century to a very legalistic and formalistic approach. “In the future, a growing divide will continue to emerge between legal and non-legal.”(81)
Jarrett further suggests that this divide is related to the difference in practitioner approaches that are necessary to help the parties resolve conflict in a legal dispute. According to Jarrett, the pre-dominant mediation form in litigated-case mediation is evaluative. “This method is most effective when the parties can readily identify objective standards or law that have been breached and the appropriate agreed-upon compensation within a settlement zone. Mediator knowledge in substantive aspects of the dispute is essential for this approach so that the mediator can provide the parties with an authoritative evaluation.”(82)

Hedeen and Coy, while noting many of the connections between non-litigated-case mediation types, including what is referred to as “community mediation,” and litigated-case mediation, foreshadow the difficulty in making the entire mediation field meet the evolved standards often present in court-connected panels by noting, it has become clear that both the length and the quality of mediation trainings received by community mediators should be increased. The trick is to do this without abandoning the field’s historical reliance on ordinary citizens from all walks-of-life who volunteer their time and services and lay claim to no extraordinary training or academic degrees”¦The courts are understandably an administrative system that is deeply committed to credentialing. But this credentialing, which often takes the form of advanced academic degrees, may too easily disenfranchise a community’s volunteer mediators.(83)

Whether for sociological reasons driven by mediation clients, or the court’s comfort with the credentialing process, the continued pressure to professionalize the litigated-case or court-connected mediation is based upon a myriad of factors that include 1) the confidentiality protection provided by evidentiary codes that anticipate such professionalization, 2) the expectation of the users of mediation services in litigated-cases that may demand a more formal procedure than is utilized elsewhere within the mediation field, and 3) the need for public accountability to resolve disputes that ultimately have been filed in a public court system. Thus, it was no surprise that in California those factors may have been partially responsible for the introduction of a bill in the California Senate, SR 05-01-2012, a resolution on mediator regulation recently under consideration, provided in part that the State Bar would be responsible for certification and registration of mediators, and that the State Bar Court would be responsible for mediator discipline.(84)

Litigated-case or court-connected mediation could either professionalize by separating itself from the rest of the field of mediation, or alternatively, they could lead the field of mediation into professionalization. McEwen notes: “The impulse to establish a professional identity often arises as a way to resist or preclude alternative forms of control over the work of practitioners.”(85) As mediators consider whether they want to professionalize their field, measures such as the one introduced by the State Bar of California provide incentive to do so rather than face the alternative of another body regulating the field. Looking at other professions, there may be other reasons as well.Benefits and Detriments to Professionalization

A brief look at other professions and the factors that may have led to their professionalization compares favorably with the current environment in mediation. For instance, Stevens, in his seminal work on American law schools,(86) notes on page 92, that the American Bar Association formed in 1878 to “improve” the status of lawyers, many of whom were eking out a living on the economic fringe of the lower middle class. Bar examinations were instituted to raise the prestige and level of practice. Kendall asserts that the medical profession was formed from the frustrations of medical school graduates who were poor and frustrated by an overabundance of quasi-medical practitioners.(87) Del Bene noted that the nursing profession formed because “the lack of standardization of knowledge in educational preparation led to excessive stratification and indeterminism in nursing and the consequential inability of the members to generate a consensual identity.”(88)

In the context of discussing the potential professionalization of the field of mediation, Welsh and McAdoo note that “professions . . . are characterized by a distinct knowledge system that serves as a conceptual map binding together the members of the profession and framing the way in which they think about, reason through, and act upon problems.”(89) They suggest that mediators do not substantially agree that their work is based on a “systematic body of esoteric, abstract knowledge.” Thus, mediators cannot agree on the “approach, skills or ethics mediators should share.”

Critics of professionalizing mediation will sometimes cite reasons that do not necessarily apply in the litigated-case or court-connected mediation context, again begging the question of whether disputes that are in a public forum such as the court system ought to be separated from the rest of the mediation field in establishing professionalization. For example, one argument is that mediation is practiced so differently everywhere that establishing uniform standards is difficult if not impossible.

The differences among the various approaches to mediation practice, including the role that the neutral and participants play and how broadly or narrowly issues are defined, are significant. Given these ecumenical differences, establishing universally applicable and acceptable standards of mediation practice would be extremely difficult and take years to achieve if at all.”(90)

Nevertheless, from the litigated-case or court-connected mediation arena is such that the evaluative form and the reliance on individual caucusing with each party is very similar from mediation to mediation. As it is, in most professions, the response to the differences in the practice is to establish certifications for different areas of practice rather than to abandon the thought of professionalization. Certifications are certainly not a new idea for the field, and Cole notes that mediation may lend itself easily to certifying mediators by the legal context in which the dispute arose.(91)

Another oft-cited argument is that professionalizing a field ultimately reduces services to the poor because the cost of service typically rises.92 Service to the disenfranchised is a complex and difficult issue, and it cannot be properly analyzed in the current climate in which those mediation services are not mandated or regulated. In fact, this concern for the disenfranchised could be an argument for regulation, as those who are the most vulnerable in society may be the most likely to be harmed via the current practice of unregulated mediation. Social work, which meets all five characteristics of a profession, is fundamentally rooted in the profession’s concern for proper and affordable care for the most vulnerable members of our society.

In many professions, the response to providing services to all segments of society is often in the form of expecting pro bono work of professionals and requiring internships of new entrants, often through universities that serve to offer professional services to the community at little or no cost. In addition, using California as a point of reference, university mediation programs can often be found mediating disputes for self-represented litigants in courthouses handling small claims or restraining order matters. California has already codified the use of public resources to offer mediation services to those without means through its DRPA (Dispute Resolutions Program Act, 2013).(93)

Finally, some commentators believe that mediation is too young to seek the norming process that accompanies professionalization. Doing so in mediation’s infancy may curtail its creativity as a field.(94) This argument again serves to differentiate the litigated-case or court- connected mediation from the rest of the field because a norming process has already taken place in that context.

Los Angeles County: A Casualty of the Pitfalls of Non-Professionalization

The pitfalls of not professionalizing litigated-case mediation are largely illustrated by recent events in Los Angeles County. Claiming budget shortfalls, the Los Angeles Superior Court announced the dissolution of its alternative dispute resolution [hereinafter ADR] services. See press release of March 6, 2013.(95) With the demise of the LASC panels, concerns were renewed about case management within the county given that the LASC ADR department was the largest of its kind in the country. With the elimination of the LASC ADR department, the Court, as a public agency, has no alternative to which it can refer parties who desire to resolve their public disputes. In contrast to other professions, members of the public cannot find licensed or certified mediators who have passed the quality or certification standards set by the state or the industry, and select a mediator that is right for them, knowing they are in good standing with the field. Once again, while Los Angeles and California may serve as case study examples, they are emblematic of a nationwide occupational status for mediation that leaves it largely unregulated and thus void of public accountability.

Conclusion

Mediators who take the position that they do not want to be regulated are unavoidably taking the position that they do not want mediation to be a recognized profession. While that may serve those who identify with the counterculture roots of mediation, it inevitably deprives one of the primary users of mediation – the disputants in litigated-cases – a regulated resource upon which the public can rely. As the Los Angeles Superior Court has found with the dissolution of its mediator panels with no obvious replacement in sight, there is a need to professionalize the world of litigated-case or court-connected mediation. Without that professionalization, public resources will continue to be excessively spent on the duplicative process of replicating local panels with arguably indistinguishably different criteria in order to serve an already overburdened court system.

Proponents against professionalization may have an unintended negative impact on the field in the public eyes. The lack of an established common code of ethics that can be universally adopted, in addition to not requiring specialized education and training, separates mediation from other recognized professions that otherwise generate public recognition. It is not unusual for the authors to hear judicial officers in Los Angeles note that with the demise of the LASC mediation panels, they would just reach out to local lawyers and bar associations to mediate cases, virtually reinforcing the conundrum mediators face in changing a public perception that mediation is not a distinct and unique occupation.

The inability to establish a specialized education standard for court-connected or litigated-case mediation has also affected the ability of the non-attorney mediator to have equal access to litigated cases, both by rule and by mediator selection processes implicit to those cases. Perhaps the biggest divide between court panels nationwide is whether to require a degree in higher education, and if so, what degree to require; those that require a law degree have essentially limited the mediator pool to attorneys. Additionally, Goldfein and Robbennol posit that attorneys are the primary clients for litigated-case mediation services.(96) Without a clear mechanism to professionalize non-lawyer mediators, the most likely scenario in a non- professionalized environment would be for the lawyer-clients to choose other attorneys as mediators because, as Jarrett notes, “lawyers can credibly claim greater knowledge and skill over the substantive, procedural, and evaluative aspects of a dispute.”(97) The Alternative Dispute Resolution Section of the American Bar Association Task Force on Mediator Credentialing noted in their report that “Disputants benefit from the opportunity to select mediators with training and experience in fields other than law. Credentialing programs may place value on legal and other academic training, but should not bar non-lawyers from obtaining credentials on de jure or de facto basis.”(98) The report therefore rejects having a law degree as a required part of the specialized education, something again that some court-connected panels have imposed in the absence of mediators professionalizing and setting the standards themselves for the field.

Levin writes that critics of professionalization often cite the principle of self- determination, embodied in all proposed mediator ethical codes, and read it to require that

disputants have unencumbered free choices in selecting a mediator.(99) However, honoring that principle in conjunction with evidentiary code sections providing blanket confidentiality seems awkward at best, and perhaps at worst, misguided public policy. It would not be considered good public policy to extend the attorney-client privilege or physician-patient privilege to well- intended non-professionals who may try to help with legal or medical matters. Court-connected panels have already indicated their needs by the very similar standards that have been developed that resemble professionalization. Litigated-case mediation has evolved into a standardized practice based upon the public forum in which it operates and the expectations of the clientele. Now may be the time for those mediators to formally professionalize and meet the needs and the expectations of the public.

32 American Nurses Association, Career and Credentialing, available at http://www.nursingworld.org/MainMenuCategories/CertificationandAccreditation (last visited July 17, 2013).

33 Association of Social Work Boards, The DSM-5 and the ASWB Social Work Licensing Exams, available at http://www.aswb.org/announcements/the-dsm-5-and-the-aswb-social-work-licensing-exams/ (last visited Nov. 17. 2013).

34 American Bar Association, ABA Mission and Goals, available at http://www.americanbar.org/about_the_aba/aba-mission-goals.html (last visited July 2, 2013).

44 Superior Court of California, County of San Diego, Civil Mediation Program Guidelines, available at http://www.sdcourt.ca.gov/pls/portal/docs/PAGE/SDCOURT/CIVIL2/ADR2/MEDIATION/MEDIATIONTEXT/MEDIATOR_MANUAL_FINAL_APRIL_2013.PDF (last visited Aug. 25, 2013).

45 Supreme Court of Virginia, Guidelines for the Training and Certification of Court-Referred Mediators, available at http://www.courts.state.va.us/courtadmin/aoc/djs/programs/drs/mediation/certification_process/certification_requirements.html (last visited Aug. 25, 2013).

46 Georgia Supreme Court, State and Local Requirements for Court Connected Mediation in Georgia, available at http://www.centerforlegalsolutions.org/neutrals/requirements.general.mediation.php (last visited Aug. 25, 2013).

47 Superior Court of California, County of Orange, Civil Mediation Program Guidelines, available at http://www.occourts.org/directory/civil/alternative-dispute-resolution/pdfs/civil-mediation-program-guidelines.pdf (last visited Aug. 25, 2013).

52 American Medication Association, Medication Education and Careers in Health Care, available at http://www.ama-assn.org/ama/pub/education-careers.page (last visited July 17, 2012).

53 American Nurses Association supra.

54 American Teachers Association supra.

55 National Association of Social Workers About NASW, available at http://www.naswdc.org/ (last visited Aug. 17, 2013)

56 Mediation Training International Institute, State Requirements for Mediators, available at http://www.mediationworks.com/medcert3/staterequirements.htm (last visited June 16, 2013).

57 Kendall supra.

58 Kendall supra.

59 American Accounting Association, About American Accounting Association, available at http://aaahq.org/about.cfm (last visited July 17, 2013).

60 American Bar Association supra.

61 American Medication Association supra.

62 American Nurses Association supra.

63 American Teachers Association supra.

64 National Association of Social Workers supra.

65 Young supra.

66 Diane Levin, Public Licensing and Regulation of Mediators: The Arguments For and Against, available at http://mediationchannel.com/2009/10/18/public-licensing-and-regulation-of-mediators-the-arguments-for-and-against/ (last accessed July 17, 2013).

75 M. Factor, The Trouble with Foxgate and Rojas: When Should Public Policy Interests Require that Mediation Confidentiality in California be Subject to Certain Common Sense Exceptions, available at http://www.mediate.com/articles/factorM1.cfm (accessed June 16, 2003).

86 R. Stevens, Law School: Legal Education in America from the 1850’s to 1980’s (1987).

87 Kendall supra at 533.

88 S. Del Bene, Professionalization of Nursing: A Historical Analysis and an Examination of the Segmentation of Nurse Practitioners, available at https://openlibrary.org/books/OL17865208M/PROFESSIONALIZATION_OF_NURSING_A_HISTORICAL_AN ALYSIS_AND_AN_EXAMINATION_OF_THE_SEGMENTATION_OF_NURSE (last visited June 30, 2013).

96 J. Goldfein and J. Robbennol, What if the Lawyers Have Their Way? An Empirical Assessment of Conflict Strategies and Attitudes toward Mediation Styles 22 OHIO ST. J. ON DISP. RESOL. 277 (2007).

97 Jarrett supra at 60.

98 Alternative Dispute Resolution Section of the American Bar Association, Final Report of the Task Force on Mediator Credentialing, available at http://www.americanbar.org/content/dam/aba/images/dispute_resolution/CredentialingTaskForce.pdf (last visited July 2, 2013).

As a franchise attorney, prior to my training in dispute resolution, I didn’t consider using mediation as an initial or primary resolution tool. I typically found the background necessary in franchising was lacking on the part of the mediator, which watered down their credibility and ability to discuss the nuances associated with the realities franchise professionals live day in and day out. The importance of the settlement came first, but the continued relationship of the parties was somewhat ignored, to the detriment of the ongoing relationship.

The franchise relationship has been likened to courtship in many articles, and rightfully so. The initial offer and sale, is like dating, getting to know all about the system and parties to the franchise opportunity. The franchise agreement is the start of the marriage, and the terms the guiding principles of the relationship. The end can be a natural expiration, or an early termination or divorce. Needless to say, disputes will arise between franchisees and franchisors, but the obligation to get past the conflict and back to business will always persist.

The long-term success of franchisors and franchisees is dependent upon a true symbiotic relationship. Many other forms of commercial ventures are transient, with parties being interchangeable and only responsible for their own actions. When a dispute arose, parties could easily move on. These transient relationships foster no sense of community or system, and in fact their actions inversely impact those similar businesses. Competitors may see success through the failure of another, and a negative impact on their operation when a competitor succeeds.

Franchising is markedly different; the success of an individual franchisee has a positive impact on fellow franchisees, and conversely, a negative impact when a franchisee fails or is in a heated dispute with their franchisor. This tethering to the system is why the resolution of conflict and relationship issues are critical for a franchise system to thrive. The franchisor and franchisee must survive the dispute, and the systems perception of how the parties navigated the dispute must strengthen their belief and commitment in a synergistic partnership.

A more proactive attempt at dispute resolution is important in maintaining the franchisor franchisee operational focus, including a resolution that protects the relationship and fosters the inherent dependency on each other and the system. My mediations allow the parties to air and resolve grievances in a controlled non-confrontational environment, guided by an experienced franchise mediation specialist. With my vast and varied experience in franchising, I am able to connect with the franchisor and franchisee and utilize my experience to assist the parties in crafting solutions not on their immediate radar. A successful resolution entails guiding the participants in reconciling their differences and relationship, to insure all the parties are poised for future success.

I have spent my entire professional career in franchising, and have honed my skills as a neutral to be very specific and tailored to the needs of the franchise attorney, parties and community. If I can be of any assistance, please do not hesitate to contact me.

If you would like a more in-depth review of my mediation philosophy and background, please feel free to give me call, or visit my website at franchiselegalsupport.com

Once again, the Program on Negotiation at Harvard Law School has published an interesting blog by Katie Shonk (In Business Negotiations, Dress the Part, June 24, 2014) discussing what we all know but do not always think about: as part of any negotiation, one must dress the part. As she explains, if one is negotiating with an apparel company, the worst thing one can do is wear a competitor’s clothing to the negotiation! Also, one may not want to show up in business attire but rather the apparel typical of the company with whom one is negotiating.

Why? As explained by Ms. Shonk:

Wearing a negotiating counterpart’s apparel or footwear to a meeting may seem like a gimmick. But “dressing to impress” for a negotiation sends subtle yet important messages: that you value and respect the company’s products, recognize the importance of small gestures, and are flexible enough to conform to their norms. That’s why bankers tend to dress down for meetings with Silicon Valley entrepreneurs and investors, writes Mattioli. (Id.)

At the same time, dressing in a non-conforming style to everyone else in the negotiation has its merits. As Ms. Shonk notes, in one experiment, executives at a Harvard Business School seminar assessed the professor differently based on what shoes she was wearing. “When she wore red sneakers with her business attire (an unconventional choice) they tended to think she had more consulting clients and charged them higher fees as compared to when she was wearing more traditional shoes.” (Id.)

Similarly, other research found that clerks at hi-end stores in Milan believed that a shopper wearing gym clothes would spend more money shopping than one wearing a dress and/or a fur coat. The theory behind this is “….that dressing unconventionally in prestigious settings signals that a person’s status is so high that she doesn’t have to bother conforming to established norms. A classic example would be Mark Zuckerberg’s signature hoodies, which he reportedly wore even to meetings on Wall Street before his company’s IPO.” (Id.)

The conclusion Ms. Shonk draws from all of this research is that how you dress for a negotiation is directly connected to what you hope to accomplish. If you are asking for money or otherwise are a supplicant, show respect by dressing according to the norms of the one with whom you seek favor. However, if the playing field is level such that there is no real power imbalance between the parties, you may actually gain status by dressing casually or even wearing red sneakers!

In many of my mediations, I tend to wear running shoes or very comfortable red “bowling” shoes with my business suit, as I am doing a lot of walking back and forth between the parties. I do get fun comments once in awhile… but I have never given any thought about how it affects my ability (.i.e., success rate) to help the parties reach a settlement. Perhaps, I should start keeping statistics!

… Just something to think about!

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Sometimes in a mediation, there arise several issues which the parties will address in a sort of rotation. It’s a curious thing to observe. When one topic becomes too hot or uncomfortable, they move on to one of the others, often until they have made the circuit a number of times. Eventually one party, thoroughly exasperated, exclaims, “We’re just going around and around!” Or are they?

There’s a famous mediation called “The Purple House Mediation.” It’s well known in conflict resolution circles for a number of reasons. It forms the centerpiece of a landmark publication called The Promise of Mediation by Robert A. Baruch Bush and Joseph P. Folger. It has been transcribed and re-enacted as a training film. Its iconic status probably has a lot to do with the fact that the matters it addresses – ethnicity and race relations, private property, self-determination – are each issues commonly found at the heart of conflict. And here they are, all together in one epic struggle! When reading it, my initial reaction was “Oh dear, they’re just going around and around.” Then I noticed a strange thing. Each time the parties addressed one of the several sub-topics in their dispute, they went a little deeper. Then, having probed dangerously close to the bone, they would move on. It was as if by changing the subject they could get a little relief from the poking and prodding. When they returned to the topic, their beginning point was more intimate and honest than when they had discussed it before. In other words, they would leave a topic that had become sore, but when they returned to it they were (strangely, I thought) able to pick up slightly beyond where they had left off.

They weren’t just going around and around. They were going deeper too. I had to think that somehow the circling was providing relief, a few minutes to heal and prepare for further probing.

I was reminded of a corkscrew. Yes, it goes around and around but it also drills down further with each pass, thereby ultimately releasing the cork, the thing that blocks the neck of the bottle. This metaphor has sustained me whenever I hear that familiar “we’re just going around and around” complaint. It allows me to agree while putting in my two cents’ worth about what I think is really happening. Let’s look at two neighbors arguing about their property line. One of them, Bruce, says in exasperation, “We’re just going around in circles!” I might say, “Yes, Bruce, I agree, we have been circling around from topic to topic. And here’s something curious – I’ve noticed that each time, we get a little closer to things that really matter.” Then I give an example specific to the mediation at hand: “The first time you expressed your annoyance about the rose bushes, Elaine told you that they were planted by her mother just after her father died. Elaine got kind of emotional, and you responded with kindness and understanding. It was a sort of touchy moment, and soon after, the subject changed to the rear wall. But when we returned to the issue of the rose bushes, you both looked a lot calmer and were able to begin doing some problem-solving. Is that how you experienced it too?”

So when things are going round and round, see if you notice the “corkscrew effect.” That may be what’s happening. If not, and the conversation is merely repetitious, other techniques such as caucusing might help. As a final resort, when someone is truly stuck in a repetitive pattern, try asking in a firm tone, “Is there anything new that we haven’t already talked about?” Once nothing new is offered, insist on moving on to the next stage of mediation.

At the ABA Dispute Resolution section spring conference, I attended a talk on mediating discovery disputes, a subject that has been of interest to me for a long time, but which should be more urgent given the difficulty traditional court processes and rules have in managing the continuing explosion of data. As Marian Riedy, who has written about the difficulties of retrieving electronic data, pointed out, the enormous costs of discovery of such data make it essential that parties cooperate in crafting agreements on the scope of discovery. Indeed, federal and state rules generally require efforts to resolve discovery issues by negotiation. That being the case, there would seem to be a place for mediators to step in and assist attorneys and parties having difficulty reaching negotiated solutions

Even though the idea of bringing more mediation to resolving discovery disputes seems so obvious, it has not really taken hold. Why? Cost might be one reason, though it would seem that in many cases the cost of calling up a mediator should be a lot less than the cost of preparing briefs and affidavits in support and opposition to motions to compel.

Institutional resistance might be another reason, as courts are accustomed to referring discovery problems to magistrate judges or discovery masters for resolution, but have less experience or ability to refer discovery disputes to mediation. One of the panelists, Nancy Greenwald, discussed her experiences as a mediator with a Virginia state court program that has had success in assigning discovery disputes to mediation. That is an encouraging sign that some courts are overcoming institutional resistance.

And the adversarial culture that has existed for decades in both big and small document cases presents another reason for slow adoption of new techniques. Lawyers are trained to leave no stone unturned, and to prepare for every possible contingency at trial. Clients are sometimes reluctant to turn over sensitive data unless they are ordered to do so. Lawyers have accepted mediation as a tool to help settle cases after they have conducted sufficient discovery and motion practice, but have been slower to turn to mediated solutions in earlier stages of disputes. Despite courts’ meet and confer requirements, and admonitions to cooperate on discovery issues, many lawyers still view discovery as a battlefield.

There is also a big difference between resolving a dispute over the scope of discovery to which parties are entitled under the liberal standards of federal and state rules, and the discovery parties might need to evaluate a case for resolution. Ideally, mediation should promote informal exchanges of the information parties need to help them settle cases (including an opportunity to find potential smoking guns held by the other side), but that is in most cases still a lot less discovery than the parties are entitled to under the rules. In other words, mediation of discovery disputes ideally should lead to an informal exchange of a limited amount of information helpful to reaching a negotiated resolution of the dispute without protracted litigation. But if the mediation is focused on determining the scope of permissible discovery needed to prepare for a potential trial, then it might be biting off more than it should be chewing.

EMPATHY, ART AND MEDIATION

“Only someone who is ready for everything, who doesn’t exclude any experience, even the most incomprehensible, will live the relationship with another person as something alive and will himself sound the depths of his own being.”

– Rainer Maria Rilke

Differences between people can be incomprehensible, fueling mistrust that can deter us from engagement. Recognizing and negotiating personal and cultural differences is dependent on developing empathy for oneself and between people. Empathy is more than feeling for another; empathy requires us to reach deep within ourselves and recognize our own inner responses so we can then better recognize another person’s response. Empathy that moves from within people and between people is core to the success of transformational mediation.

Being open to the responses of others while recognizing our own requires what the cultural philosopher Roland Barthes called being “twice fascinated” (simultaneously as a participant in an event and as a witness) — to be open to both our immersive psychophysical experience and our mind’s cognitive assessment. Sensorial and cognitive awareness are critical to a mediator’s effectiveness, yet in the teaching and application of mediation strategies there is often an imbalance of attention given to these capacities. How might our field of conflict resolution expand if we rebalanced our attention between sensorial and cognitive capacities? The authors, who are artists as well as mediators, have found that the arts offer technique and methodology rich in perceptual, sensorial and cognitive strategies that can be creatively adapted to the needs and contexts of mediation.

The arts enhance our human impulse to make meaning through aesthetic processes that allow for relational and communicative acts between people. When meaning is shared, empathy “mediates” – moves between – our human differences. To the extent that art can generate empathy, and empathy can bridge the differences between us, art is implicitly “mediative.” Some artists use the relational, mediative qualities of their art practice to stimulate their audience to identify with people they typically do not identify with, or more directly to engage them to co – imagine ways to transform their belief and behavior.

In this article we focus on how art-based modalities can be applied to mediation with three goals:

Building our capacity to cultivate perceptual and bias awareness

Catalyzing and deepening our experience of empathy in mediation

Engaging further discussion: What is left unsaid?

1. Building Capacity for Perceptual and Bias Awareness

“Aesthetics” is defined as “the branch of philosophy that deals with the principles of beauty.” The arts recognize “beauty” as simple and complex, inspiring and confounding. Artists respond to inner life and to the outer world through the filter of aesthetics, which for any single artist is dependent on multiple factors of perspective—history, context, intention, form, content and function. The aesthetic approach is a way to study and express subtle permutations of inner and outer life, explore the ability of art to evoke contradiction and uncertainty, and set the stage for vision, intimacy and dialogue.

In order to develop and hone an aesthetic sensibility, artists are trained to observe and recognize sensory and cognitive experience, including awareness of cultural context, internalized assumption, belief and bias that inevitably shift meaning. What can perceptual and bias awareness training add to a mediator’s practice?

A. Environment

“On the penthouse floor of the MGM building, Century City, Los Angeles, at the end of a typical workday, I entered a large conference room of a well-known law office. A colleague had invited me to make a presentation on what the arts have to offer lawyers and mediators. As an artist with a history of working with spatial variables I know well how the immediate environment shapes our perceptions and relations with one another. I was invited to communicate these skills.

I arrived early to familiarize myself with the room’s architecture, furniture, lighting and multi-media capacities and noticed that the room’s technological aspects could easily turn the oversized conference table and occupants seated around into theatrical characters.

At the push of any of various wall buttons I could make spotlights beam and dim or floodlights bathe and shadow areas of the room. I could draw curtains open or closed across a large glass wall facing the outer office lobby, to make the room private or reveal it to passersby, lower floor-to-ceiling window scrims to shield the room from the sun or raise them to expose the incredible landscape of Los Angeles 20 floors below. I could open wall cupboard doors to reveal projection screens that hummed electronically as they descended to the floor and rose back to the ceiling. I could turn video flat screens on and off, and swivel the leather seats surrounding the conference table in any direction.

Sixty invited mediators and lawyers arrived. They sat sedately facing one another around the conference table waiting to “conference” in the usual way. For the first twenty minutes I “played” the room to orchestrate its shifting potential and to alert the participants to their shifting experiences. They were mesmerized by the infinite variations of a room they previously had taken for granted over hundreds of conference hours with hundreds of clients. For twenty minutes they were released from their norm and invited to experience sensation, together. This aesthetic lesson revealed how we are framed and conditioned by the environment we are in, made distant and made intimate to one another. Recognizing our experience of where we are and how our relations with others are affected means something, and especially to a mediator.”

– Dorit Cypis

B. Sight

We often take for granted the experience of seeing, assuming that what we see is a self-evident truth. Artists are trained to recognize that seeing is about who is seeing as much as what is seen, that the act of seeing is like a mirror reflecting the seer back to herself. In fact, seeing is a complex phenomenon that is simultaneously physical, perceptual and experiential, revealing our deeply held cultural beliefs and personal experiences.

The Seeing Triangle (above) unpacks three key modalities of sight that can build the mediator’s capacity to better understand nuances of a conflict by assisting her to recognize her own tendencies and biases and those of the parties she is working with.

Example: A person sees a chair and dislikes it immediately (“I hate that blue chair, it’s ugly”). The observation that the chair is blue is an example of formal sight. The emotional reaction is an example of experiential sight. And the judgment that the chair is ugly represents perceptual sight. Each aspect of sight is influenced by culture and simultaneously by subjective experience of conscious or repressed memory, emotion, and sensation, e.g., “that blue chair, reminds me of a chair I fell off at age 5.” If these influences are not recognized and acknowledged, they can shift how this person sees all blue chairs. Is she seeing the chair before her, or is past experience occluding this chair through bias?

Substitute person or place or situation for the chair and you can see how bias can shut down engagement. Recognizing the complexity of “how” we see informs us more subtly of our tendencies, bias and prejudice and opens paths of empathic understanding between us.

2. Catalyzing the Experience of Empathy

The arts engage the mind and body interdependently, speaking both to our thinking mind and to our body’s ability to experience sensorially and emotionally. We hold emotion, memory, pain and joy, thought, dream and desire in our body/mind. We are each a repository of history though our lived experience. Aesthetic expression – form, mass, movement, sound, visuality or language – can stimulate us to revisit the repository of our history and go beyond it towards the history of others. The arts invite us to feel, think, and imagine from the self outwards. Aesthetics is a way to build empathy for ourselves and for others. Think of a film or a performance or an image you recently saw that stimulated you in this way.

In this light, aesthetics can be seen as a strategy to move people to see something about themselves and the world that they didn’t see before, catalyzing and deepening an experience of empathy. Specific arts practices are available as resources for mediators to explore, adapt and apply as catalysts of empathy within more traditional mediation practice.

3. Engage Further Discussion: What is Left Unsaid?

In closing, we return to a question rather than to answers. How might our field expand if we employed tools from arts-based practices rich in perceptual, sensorial and cognitive strategies, which can guide mediators to be “twice fascinated?” Drawing from our case studies, and the mentors and peers who have inspired our use of empathy, we offer the following guiding principles to cultivate perceptual and bias awareness and deepen an experience of empathy in conflict transformation:

The authors presented an earlier version of this article at the ACR Annual Conference in September 2013.

About the Authors

DORIT CYPIS is an award winning artist and innovative professional mediator. Her work on identity and social relations has been presented at major museums internationally. She came to the field of Conflict Resolution in 2002, founding Foreign Exchanges in 2007.

SUSAN OETGEN is a performing artist, educator and facilitator active in Brooklyn, NY and Washington, DC. As part of her creative practice, Susan designs and facilitates workshops and dialogues on the performing arts and conflict transformation for adults, and teaches conflict resolution and violence prevention through the arts in NYC public schools.

EVA VANDER GIESSEN consults with organizations on storytelling as a mechanism for social change. Beyond her Playback Theater practice, she brings together Palestinians and Israelis through entrepreneurship at MEET and serves on the board of Afghan Friends Network.

Case Study 1

Susan Oetgen on Fieldwork

Fieldwork, a program offered by The Field, a NYC-based non-profit, is dedicated to the creative and professional development of performing artists (www.thefield.org). Each session features the presentation of works-in-progress “showings,” followed by a “feedback circle” in which the artist presenting work receives feedback from other artists present.

The Fieldwork methodology could be adapted for basic mediation training as a follow-up to role-play.

Participants offer one another incisive and stimulating critique by restricting their feedback to direct observations rather than directorial suggestions. In doing so, they support the integrity and intentionality of each other’s creative agency. In Fieldwork the practice of observing and speaking about what an artwork simply is, rather than what one thinks it should be, engages another artist’s aesthetics directly and helps us see something new about the world and about ourselves. It is a practice that is inherently mediative.

According to Diane Vivona, a Fieldwork facilitator and former Executive Director of The Field, “”¦Fieldwork is like a guideline to living. It is all about communication and listening to people and being very specific about things…” Fieldwork is first and foremost a creative process, but an implicit, secondary outcome is that workshop participants relate to each other with empathy as a result of the trust that is built up in the process.

The Fieldwork methodology could be adapted for basic mediation training as a follow-up to role-play, or for advanced mediators who wish to meet together in a practice group. Giving incisive but non-directorial feedback after a role-play training session could help mediators uncover their own unconscious habits of perception and bias, and practice using language that aims for directness and honesty while supporting the integrity, intentionality and agency of others. Receiving honest, keen, non-directorial feedback about performance in a role-play training session – and not responding to it in the moment – could help mediators attend to their own sensorial and cognitive experience of vulnerability and stay present to the discomfort that vulnerability elicits.

Case Study 2

Dorit Cypis on Psycho-Portraits

Psycho-Portraits is a creative process I developed that bridges live performance, cinema and photography to show how we unconsciously internalize cultural images that stand in for our forgotten or repressed experience, and how images can re-evoke liminal aspects of our identity. Over the past three decades I have used this process to create performative artworks for exhibition, and as a teaching tool for artists, psychotherapists, and educators across the United States and Europe. Psycho-Portraits also exists as photographs that have been widely exhibited.

Moving across the projection beams Robert reveals within his shadow an image of the opera singer Jessye Norman, now embedded within an image of himself as a child.

In this process a participant is invited to my studio and brings with her autobiographic and public domain images that are compelling to her (whether through attraction or repulsion). The images are technically transformed for slide projection. Three projectors are placed side by side to project three cinema size images at once so that they overlap onto the same cinema screen. The light of the overlapping projections obscures the individual images. I guide the participant to explore the relationship between the images by moving bodily between the projectors and the screen, acting as a masking device to fluidly block light of the projectors, concealing parts of some images while revealing parts of others. On the screen the previously static and passive images come to life and (lava-lamp like) become active and fluid. The participant is now an actor enmeshed in a psychophysical relationship with her/his images, stimulated to recognize an internalized past experience, something newly remembered and felt, something hidden brought to light.

When I practice as a mediator, especially when in a high emotion session, I think back to what I learned from this rich process: how our inner lives are complex and contain the richness of our lived and learned histories; how we collect images, often unconsciously, that stand in for and reflect back to us something about our identities, hopes, dreams, loss and desire; how creating a safe creative space within which to gently unravel what we hold within, allows for deep self-reflection, empathy and possibility. Images carry stories.

Moving across the projection beams Malka reveals an image of herself as child now embedded in the classic photograph, The Living Dead of Buchenwald, by Margaret Bourke White, 1945.

Try asking the parties in a mediation to each bring to a session an image close to their hearts. In silence, have the parties exchange their pictures and look at them for two minutes witnessing how they see the image. Have them return the images to the owners and ask each party to share what her/his image is about while the other/s listen. That is performing empathy.

Case Study 3

Eva Vander Giessen on Playback Theatre

True Story Theater in Boston in 2013, photo by Jason Jedrusiak.

Playback Theatre (www.playbacknet.org), founded in 1975 by Jonathan Fox and Jo Salas, is empathy embodied. In Playback participants/ tellers share an important story from their life, which an ensemble of actors then spontaneously and sensually brings to life through words, movement, color, gesture and music. The story is mirrored back to the teller evoking an empathic emotional response from the teller towards herself often deeper than previously experienced, as well as evoking empathy towards the teller from the audience. Playback takes place in school classrooms, church basements, hospital hallways, conference rooms, and police stations to elicit the stories behind loss and hurt, stories that are often the underbelly of conflict.

Playback builds a bridge between people, accessing the richness of their emotional and sensorial experiences and giving dignity to their internal struggles.Playback builds empathy for the shared grief, longing, fear and hope between people, an essential tool in humanizing people in conflict.

Many mediators use techniques to draw out the telling of personal stories, as in Narrative Mediation, which looks for patterns of repetition in a party’s spoken story and guides a shift of the story to one of non-victimhood and possibility. Building on Narrative Mediation, Playback models sensorial evocation of a conflict narrative that places conflict within a context of humanizing relationships. Playback adds a rich understanding of a conflict story that goes beyond the spoken word to touch us sensually – “as a living, fomenting ingredient within the conflict rather than a simple account of the conflict,” (Linda M. Park-Fuller, PhD, Beyond Role Play: Playback Theatre and Conflict Transformation,” Centre for Playback Theatre. 2005). Witnessing a story “played back” with all the artistic components of metaphor, sound and movement deepens the teller’s understanding of his/her story and reveals to other participants their own perceptions in visceral “ah-ha” moments.

Mediators looking to catalyze or deepen empathy within a mediation context can invite a Playback ensemble to playback/reflect stories of the parties involved, and guide parties to recognize their own responses. Examples of the use of Playback include narratives between descendants of Nazi soldiers and Holocaust survivors, between Boston citizens who have been incarcerated, within families dealing with the tensions of inheritance and legacy, and among university stakeholders creating a healthy environment for diversity.

I am a dog lover; so any story about dogs catches my eye, and I will find a way to relate it to negotiation/mediation. Here is my latest.

Recently, The Economist (November 2, 2013) and other news organizations reported on a study by Giorgio Vallortigara, Marcello Siniscalchi, Rita Lusito and Angelo Quaranta on the meaning of a dog wagging its tail. Previously, Dr. Vallortigara and other researchers found that dogs will wag their tails either to the left or to the right in response to different emotional stimuli. The “… dogs will wag their tails to the right when they see something pleasant such as a beloved human master and to the left when they see something unpleasant, such as an unfamiliar dominant dog.” (The Economist.)

Now, in a follow up study, the researchers established that which way a dog wags its tail is meaningful to other dogs as well. That is, like people, they “read” other dogs. To determine this, the researchers;

“…wired up several dozen dogs of both sexes and various breeds with electrodes, to record the animals’ heart rates, and then showed them videos of dogs, or silhouettes of dogs, head-on, with tail wagging to left or right. A left-wagging tail, they found, induced a higher maximum heart rate (in other words, an anxiety response) than a right-wagging tail, and this maximum heart rate lasted longer. A right-wagging tail, indeed, produced the same results as one that was stationary.” (The Economist.) ”

The researchers also found that more often than not, the dog was left wagging when it displayed the familiar symptoms of a stressed out dog; ear-flattening, head-lowering and whining. (Id.)

(Frankly, I went home and tried to read my dog’s body language; although I knew Cookie was happy to see me and was wagging her tail vigorously, I could not tell that it was a right tail wag- it looked more even to me!)

So, dogs like people read and react to “body language. “Body language” (aka kinesics aka non-verbal communications) not only includes “how we hold and move our bodies” but also:

how we position our bodies

our closeness to and the space between us and other people (proxemics)

and how this changes

our facial expressions

our eyes especially and how our eyes move and focus, etc

how we touch ourselves and others

how our bodies connect with other non-bodily things, for instance, pens, cigarettes, spectacles and clothing

our breathing, and other less noticeable physical effects, for example our heartbeat and perspiration

(Body Language at p.4)

However, it tends not to include our “…pace, pitch, intonation, volume, variation, pauses etc of our voice. These are deemed verbal cues rather than visual ones. .” (Id. at 5).

Professor Albert Mehrabian, who is currently teaching, writing, consulting, and researching as Professor Emeritus of Psychology at University of California at Los Angeles, has been a pioneer in the study of how people communicate. Based on his research, he determined with respect to communicating feelings and attitudes (i.e., like-dislike or where emotional content is important) that people communicate:

7% of message pertaining to feelings and attitudes is in the words that are spoken.

38% of message pertaining to feelings and attitudes is paralinguistic (the way that the words are said).

55% of message pertaining to feelings and attitudes is in facial expression.

(Mehrabian at 1.)

Thus, to understand the context of any communication, not only should both the speaker (to convey the meaning) and listener (to understand the meaning) pay attention to the words, each should also pay attention to the style, expression, tone, facial expression and body language, as well. (Id. at p. 3) But, Dr. Mehrabian cautions that the notion that 93% of our communication is non-verbal is NOT a general rule that can be applied across the board. As his research involved face to face spoken communications, his percentages may well NOT apply to telephone conversations, texting, e-mail communications or even video conferences. (Id. at 4-5).

As you might suspect, there is quite a lot written on this topic. I highlight it only to give you some food for thought the next time you find yourself in a negotiation or mediation. Listen not just to the words, but watch how they are being said, and more importantly, pay attention to the body language. People, like dogs, “wag their tails” signaling their emotions and what they are really thinking!

…. Just something to think about!

PHYLLIS POLLACK BIO
Phyllis G. Pollack, principal of PGP Mediation, is a full time mediator in Los Angeles, Ca, specializing in business and commercial disputes and is past president of SCMA and the current vice-chair of the California state bar ADR committee.

A funny thing happens to professionals who are natural born perfectionists: Confronted by an endless array of options, the perfectionist is so worried about making a suboptimal choice that even when they have agonized, evaluated, negotiated and finally acted, they are often left feeling regretful. Indeed, it is a challenge to live up to perfection in every decision. As a decision-maker, perfectionists can also be seen as “maximizers.” Lawyers and their clients who are insistent upon getting the absolute win in litigation are typical representatives of this decision-making style.

There is another option that fewer lawyers or litigants may have considered: satisficing decision making. Defined as “a process through which an individual decides when an alternative approach or solution is sufficient to meet the individual’s desired goals rather than pursue the perfect approach,” the term was coined by Nobel laureate economist Henry Simon in 1971.

By way of example, consider the house hunting project that my daughter and son-in-law recently undertook. My daughter, an educational psychologist, made a list of all of her needs: three bedrooms and an office, in a good school district, with a new or modern kitchen and in a neighborhood that is primarily comprised of single family homes. A classic satisficer, she was ready to put an offer on the first (and second and third) home that met her criteria. Finding the “perfect home” was not her objective.

My son-in-law, however, holds an MBA and is the classic maximizer. Before he made any offers, he needed to see every house on the market between Westlake and Long Beach, run comparable values for every neighborhood, consult with architects and lenders about loan-to-value and costs of upgrades, and assure himself that the investment he was about to make was absolutely optimal. (Of course, by the time the excel spread sheet was printed, the homes had sometimes been sold.)

In the new book, “Wonder Women: Sex, Power and the Quest for Perfection,” by Debora Spar, president of Barnard College, the author candidly admits that “my generation made a mistake.” Those of us who came of age after the feminist movement of the 1970s mistakenly believed we (women) could have it all and do it all. As Spar says in a recent interview in the New York Times, “we took the struggles and victories of feminism and interpreted them somehow as a pathway to personal perfection.”

In her role as head of one of the most elite all women’s universities in the country, Spar offers the alternative of “satisficing” as a means to achieve happiness, balance and still make significant contributions to intellectual thought in business, law and the sciences. She suggests that going for “good enough” may be the best option. (For lawyers, I see this as giving you the green light to order take-out for your next family gathering or celebration and to decline that particular PTA committee appointment this year).

In mediation, the maximizers are easy to spot: They are the men and women who take a “strategic walk out” at the end of the day rather than accepting an offer that is sub-optimal. The maximizer needs to be certain that there are no better options if they wait, prevail on a risky motion, take that last deposition, etc.

In the case of a recently mediated alleged wrongful termination from employment case based upon a failed security clearance check, the maximizer demanded $1 million and then walked away when the employer refused to pay less than two years of plaintiff’s lost salary in damages (the optimal result of the negotiation or strike point) plus an adequate compensation to cover attorney fees, amounting to another 40 percent on top.

The satisficer, after hearing all of the employer’s defenses, may have accepted an offer as a “second best” offer, even though there was a chance he could do better over the next few months. The offer of one year of salary may have been acceptable as the best available option, though not quite optimal. Where the former employer agreed to seal the personnel records and convert the termination to a voluntary resignation, the second option becomes “very good,” though still suboptimal. While the satisficer could see that, the maximizer would turn down such an offer as insulting and consider it a loss, not merely second best.

To the satisficer, the offer, simply stated, would have been “good enough” and the client could have had the funds to get an apartment, retrain for another position and get back on his feet instead of continuing to stay with relatives and apply for jobs which included being compelled to admit he had been terminated from his last position for failure to pass a security test.

In other words, the satisficer in a mediation carefully evaluates the best option “on the table” against the risks and expenses and delays of rejecting that offer and proceeding with further negotiation after the mediation. In those instances where there is an option that is “good enough,” the satisficer will accept the last and best offer, even if it may not have been the perfect choice or outcome. Ad studies have shown that typically the satisficer is more satisfied with his choices than the maximizer, who can’t escape doubting himself and wondering whether he could have done still better.

Here lies the paradox of perfection: It’s hard to be absolutely certain that you have achieved the optimal outcome, and because you are a perfectionist you will beat yourself up over it and second guess yourself even after a good decision is made.

Before making your next decision, consider your general approach to decision making and whether choosing the option that meets your goals, satisfies your Client’s objectives and perhaps even pleases the person with whom you share joint tenancy is ultimately a better option, even if not the perfect one. It may put you on the road to both professional success and personal happiness.

Jan Frankel Schau is a mediator with ADR Services, Inc. She can be reached at jfschau@adrservices.org

It is July, and your client has urged you to get through with the pending litigation as quickly and efficiently as possible. You call the court to schedule a hearing on a motion for summary judgment and the first available date is next May. You delicately broach the subject of ADR with your opposing counsel, select a busy mediator who can fit you in sometime in late August, and you and your client arrive for a full day’s mediation hearing at 10:00 a.m. with great expectations. By 3:00 p.m., there have been no monetary offers or demands made and your client is getting frustrated with you, the process, the mediator and the entire judicial system.

There is great news coming out of business schools and corporate America about strategic negotiation. If the predictions made by Professor Rita Gunther McGrath of Columbia University’s Business School are accurate, “fast and roughly right” decision making will soon replace deliberations that are “precise and slow.” This new way of decision-making has extended beyond business to international banks, consultants and real estate professionals who all recognize that an ever-changing global economy demands new and innovative ways to stay ahead of the curve in order to maintain even a transient competitive advantage. In the time it takes to deliberate about a pending deal, all potential profit could be lost and the opportunity missed. Lawyers and mediators would be well served to adopt the same strategy as it applies to settling cases.

How does the “fast and roughly right” decision-making process work?

Nick Tasler, a human behaviorist and writer for the Harvard Business Review, suggests a simple, flexible, “Know-Think-Do” framework to enable business leaders to immediately start making these “fast and roughly right” decisions. He paraphrases Albert Einstein, saying “the framework should be as simple as possible, but not simpler.”

The Know-Think-Do framework comes down to three distinct steps in every decision. First, the decision-maker must know the strategic objective. In terms of a lawsuit, that might translate as: “get out of the lawsuit before any further disruption to our business occurs at the least expensive amount by year end,” or perhaps, “get the case settled at a level where I can pay my lawyers and cover my expenses for another year until I can find another job.” In simplifying the strategic objectives, the decision-maker will have to eliminate some objectives in favor of the best or most salient one or two. This means the discussion should center upon which of the multiple objectives will have the biggest positive impact and will adversely affect the fewest possible stakeholders. Remember, there is no such thing as a perfect choice.

The next step is to think rationally about all of the possible options that may satisfy the primary strategic objective. This process is best done through what Tasler refers to as an “Anti-You.” Let an objective third party (as in a neutral) shine a light on the potential options and help you and your client see which one aligns best with your identified strategic objective. By seeking out the opinion of a nonparty, those options that are weaker will be eliminated in favor of the stronger ones. The testing that goes on with the “Anti-You” is designed to highlight possible new insights as you talk through each option and to offer new perspective from the third party as to the feasibility and likely outcome of each of the “good options.”

As in any decision, the last step is the most challenging. After identifying the strategic objective and laying out the good options that will align with that objective, the decision-maker has to do something: make the decision. This is hard because you are also deciding to go with that choice which you have declared to be “roughly right” under the prior analysis, even if it may not be “altogether” or “perfectly” right.

In my initial hypothetical of a client already having reserved a date for a motion for summary judgment, this may be the hardest step of all because it contemplates walking away from a judicial determination of who is actually “right” under the law in favor of the “roughly right” decision to settle without the satisfaction of knowing the results of all of your legal research, brilliant written briefs, and eloquent oral arguments. It is, in fact, the anti-you personified as you give up that slow, deliberative, counseling role in favor of a fast-paced, business-based decision.

Practical applications for decision-making in mediation

Like Tasler’s 3-step framework of “Know-Think-Do,” the first several hours of mediation are often spent probing towards the ultimate strategic goals of each party before any options or bargaining begins. When the mediator asks questions which appear to create rapport and trust, they are also mining to discover what is really driving the dispute. As these discussions go deeper, the decision-maker and his counsel can come to see and identify their own strategic objectives. For example, does the plaintiff have an alternative source of income so he or she can afford to maintain the lawsuit (for wrongful termination) for the next two years or does he need a cash infusion now? Is the corporate defendant under scrutiny by the labor commissioner for some wage and hour issues and wants to avoid a potential class action lawsuit or is it in talks to be acquired and wants to have all pending lawsuits off the books by year-end?

The next step, rational thinking and option generating, is a process with which neutrals are particularly adept. Instead of the “Anti-You,” I prefer to call the neutral the “Alter Ego You” in this instance. The Alter Ego You will test out the best options by shining a light upon how these options will be presented to the other side. Sometimes, when you hear the options played back to you, they sound less rational or more appealing than they did when you first raised them. Next, the Alter Ego You will offer her own perspective on these various options — a rhetorical question, such as, “If your objective is to close this down by year end and you propose to demand a number that they have already told me is beyond what they can come up with in a lump sum settlement, how does that align with your strategic objective?” In discussing the various options with the Alter Ego You, the decision-maker may see a new or different perspective, leading them to narrow the field of possible good options to only one or two.

Finally, as Tasler suggests, after all of the hard work has been done to identify the strategic objectives and to think rationally about which options are best going to align with those goals, it’s time to “call it quits on all of the planning, strategizing, number-crunching and critical thinking” and just select one option, even if it’s not the perfect one.

Just as Einstein advocated, the process should be as simple as possible, but no simpler. Once you have distilled the decision down to a written agreement, you and your clients can simply let go of all of the other “good” options. The signed agreement, as simple as it may be, will end the litigation and second-guessing. It will also achieve what your client came to you for: an end to the dispute, an end to the anxiety and expense of litigation and finality, sometimes even with a guarantee of compliance. It does not really get better than that.

Final thoughts

Ruth Gunther McGrath observed that the competitive advantage that many American businesses once enjoyed is no longer sustainable. Instead, we live and work in a new world of “transient advantage.” Trial lawyers understand this concept too: you win some and you lose some. For that reason alone, business leaders are no longer sticking to the same old playbook and expecting the same results. Business students and young entrepreneurs who have been raised in the age of the Internet are well trained to think fast and accept “roughly right” decisions.

While a handful of trial lawyers take enormously large stake cases to trial each year, the vast majority of litigated cases get resolved without the theatre of a jury or the judicial determination of a jurist as to rights and remedies which may not be perfectly aligned with the strategic objectives of the disputants. Like business people, often the most successful lawyers and law firms are those that keep their clients out of court and find a way to meet their business or personal objectives reliably and consistently.

Business people are leading the way to radically re-thinking traditional decision-making models. Perhaps it is time for lawyers to also create a new playbook that includes the radical notion that the slow wheels of justice and deliberative decision-making that has characterized the judicial system should be brought into the 21st century of “fast and roughly right” decision-making.

Jan Frankel Schau is a mediator with ADR Services, Inc. She can be reached at jfschau@adrservices.org.

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